FIRST SECTION

CASE OF ANDREYEVA v. AZERBAIJAN

( Application no. 19276/08 )

JUDGMENT

STRASBOURG

18 December 2012

This judgment is final but it may be subject to editorial revision.

In the case of Andreyeva v. Azerbaijan ,

The European Court of Human Rights ( First Section ), sitting as a Committee composed of:

Nina Vajić , President, Khanlar Hajiyev , Julia Laffranque , judges, and André Wampach , Deputy Section Registrar ,

Having deliberated in private on 27 November 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 19276/08) against the Republic of Azerbaijan lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Azerbaijani national, Ms Vera Yakovlevna Andreyeva (“the applicant”), on 3 March 2008 .

2 . The applicant was represented by Mr O. Muradov , a lawyer practising in Azerbaijan . The Azerbaijani Government (“the Government”) were represented by their Agent, by their Agent, Mr Ç. Asgarov .

3 . On 4 January 2011 the application was communicated to the Gove rnment.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1940 and lives in Baku .

5 . In 1994 the applicant ’ s brother sold his flat to S. and in 1995 S. ’ s ownership right to the flat was officially registered.

6 . In 1996 the applicant ’ s brother lodged a court action asking for annulment of the sale contract of 1994 and all subsequent transactions concerning the disputed flat. On 22 May 1997 the Nizami Distric Court terminated the proceedings as the applicant ’ s brother subsequently withdrew his claims. Upon a request of the applicant ’ s brother, on 24 June 1997 the Baku City Court quashed the judgment of 22 May 1997 and sent the case for new examination.

7 . On 14 April 1998 the applicant ’ s brother died and the applicant was recognised by the court as his heir. The applicant asked for the proceedings to be renewed.

8 . In 1999 S. sold the flat to O. and the latter registered his ownership right to the flat.

9 . On 16 August 2001 the Nizami District Court upheld the applicant ’ s request and declared the sale contracts of 1994 (concluded between the applicant ’ s late brother and S.) and of 1999 (concluded between S. and O.) and the ownership certificate in O. ’ s name null and void and ordered the eviction of O. and his family from the flat.

10 . On 14 November 2001 the Court of Appeal changed the judgment of 16 August 2001 in the part concerning O. and his family ’ s eviction from the flat. The court stated that O. and his family were internally displaced persons ( IDPs ) from the occupied Fizuli region who had no other accommodation and ordered postponement of the execution of the judgment in the part concerning their eviction until liberation of the Fizuli region from occupation.

11 . On 29 March 2002 the Supreme Court changed the judgment of the Court of Appeal and quashed the part on postponement of the execution.

12 . On 13 June 2002 the applicant was delivered an ownership certificate to the flat.

13 . After the communication of the application to the respondent Government, on 17 December 2009 the judgment in the applicant ’ s favour was enforced and on 18 December 2009 the enforcement proceedings were terminated .

II. RELEVANT DOMESTIC LAW

14 . The relevant domestic law is summarised in the Court ’ s judgment in the case of Gulmammadova v. Azerbaijan (no . 38798/07, § § 18-24, 22 April 2010) .

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

15 . Relying on Article 6 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicant complained about the non ‑ enforcement of the judgment in he r favour. Article 6 § 1 of the Convention reads , as far as relevant, as follows:

“1. In the determination of his civil rights and obligations ... , everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

A. Admissibility

1. T he Court ’ s competence ration a e temporis

16 . The Court observes that the domestic judgment in the applicant ’ s favour was delivered prior to 15 April 2002, the date of the Convention ’ s entry into force in respect of Azerbaijan .

17 . The Court notes that in the light of the authorities ’ lengthy failure to ensure the execution of the judgment in question, it remain ed unexecuted for a long period . Therefore, there was a continuous situation and the Court is thus competent to examine the part of the application relating to the period after 15 April 2002 ( see Gulmammadova , cited above, § 26).

2. The victim status of the applicant

18 . The Court notes that the judgment in the applicant ’ s favour was enforced on 17 December 2009. However, the Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application.

19 . In the present case, having regard to the fact that the judgment remained unexecuted for more than eight years, of which more than seven years fall within the period after the Convention ’ s entry into force in respect of Azerbaijan, the Court finds that no redress was afforded to the applicant, as no compensation was offered to her in respect of the alleged violation of the Convention, that is the lengthy non-enforcement of the judgment in the applicant ’ s favour .

20 . In such circumstances, while it is true that the judgement in the applicant ’ s favour was enforced, the Court finds that the measures taken in the applicant ’ s favour were nevertheless insufficient to deprive her of “victim” status in the present case (compare with Ramazanova and Others v. Azerbaijan , no. 44363/02, § 38 , 1 February 2007 ).

3 . Other admissibility criteria

21 . T he Court further considers that the complaints a re not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention or inadmissible on any other grounds. They must, therefore, be declared admissible.

B. Merits

22 . The Court points out that the factual circumstances of the present case are similar – and the complaints and legal issues raised are identical – to those in the Gulmammadova case (cited above) , in which it found violations of Article 6 § 1 and Article 1 of Protocol No. 1.

23 . Having examined all the material in its possession, the Court finds that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in respect of the present application.

24 . In particular, the Court is prepared to accept that, in the present case, the existence of a large number of IDPs in Azerbaijan created certain difficulties in relation to the execution of the judgment in the applicant ’ s favour. Nevertheless, the judgment remained final and enforceable, but no adequate measures were taken by the authorities to ensure compliance with it. It has not been shown that the authorities acted with expedition and diligence in taking any measures necessary for the enforcement of the judgment in question. In such circumstances, the Court considers that no reasonable justification has been advanced by the Government for the significant delay in the enforcement of the judgment.

25 . As regards to the applicant ’ s submissions concerning the alleged violation of her property rights, it has not been established either in the domestic proceedings or before the Court that any specific measures were taken by the domestic authorities in order to comply with their duty to balance the applicant ’ s right to peaceful enjoyment of his possessions protected under Article 1 of Protocol No. 1 to the Convention against the IDPs ’ right to be provided with accommodation. In such circumstances, the lengthy failure to ensure the execution of the judgment resulted in a situation in which the applicant was forced to bear an excessive individual burden. The Court considers that, in the absence of any compensation for this excessive individual burden, the authorities failed to strike the requisite fair balance between the general interest of the community in providing the IDPs with temporary housing and the protection of the applicant ’ s right to peaceful enjoyment of her possessions (see Gulmammadova , cited above, §§ 43-50).

26 . There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

II . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

27 . The applicant alleged a violation of her right to home under Article 8 of the Convention. Having regard to all the material in its possession, and in so far as this complaint falls within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in Article 8 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

28 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

29 . The applicant claimed EUR 10,000 in respect of non-pecuniary damage.

30 . The Government submitted that the amount claimed was excessive and indicated that an amount of EUR 2,400 would be a reasonable amount to be awarded under this head.

31 . The Court considers that the applicant must have sustained some non-pecuniary damage as a result of the lengthy non-enforcement of the final judgment in her favour. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the amount of EUR 3,6 00 under this head, plus any tax that may be chargeable on this amount.

B . Default interest

32 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Declares the complaint concerning the non-enforcement admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3 , 6 00 ( three thousand six hundred euros ) in respect of n on-pecuniary damage, plus any tax that may be chargeable to the applicant, to be converted into New Azerbaijani manats at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount s at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 18 December 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Nina Vajić Deputy Registrar President